People v. Rhinehardt

Murphy, J.

(concurring). I concur in the result reached by the majority opinion reversing defendant’s convictions and remanding for further proceedings. However, I disagree with the view expressed by the majority that the trial court’s error could never be regarded as harmless. Permitting the prosecution to call a witness after both parties had rested and completed closing arguments was highly unusual and inappropriate, to say the least. I would decline to establish a bright-line test that *3such an error can never be regarded as harmless and would instead conclude that the determination whether an error such as this warrants reversal should be made on the basis of the facts of each particular case. In this case, the testimony of the witness related to the circumstances of the charged offense that belonged in the prosecution’s case in chief, and was therefore improper rebuttal. See People v Leo, 188 Mich App 417, 422; 470 NW2d 423 (1991). Because I would not conclude that this error was harmless beyond a reasonable doubt, I would hold that the trial court abused its discretion in permitting the admission of this evidence. Id., 424.